SETTLEMENT AGREEMENT AND
RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE
is entered into as of the 31st day
of December, 2008 (hereinafter referred to as the “Effective
Date”), by and between TORVEC, INC., JAMES Y. GLEASMAN
a/k/a JAMES A. GLEASMAN (hereinafter “James Y.
Gleasman”), KEITH E. GLEASMAN, RICHARD B. SULLIVAN, GARY A.
SICONOLFI and FLOYD G. CADY JR. (hereinafter collectively
referred to as the “Torvec Parties”), on the one
hand, and CXO ON THE GO, LLC, CXO ON THE GO OF DELAWARE, LLC,
PHILIP A. FAIN, READ D. MCNAMARA, RICHARD E. OTTALAGANA, and
ROBERT F. GREEN (hereinafter collectively referred to as the
“CXO Parties”) (the Torvec Parties and the CXO
Parties are herein collectively referred to as the
“Parties”).
WHEREAS , Torvec, Inc. engaged CXO on the GO, LLC and
CXO on the GO of Delaware, LLC (hereinafter collectively referred
to as the “CXO Entities”) pursuant to various letter
agreements, dated February 20, 2004, June 30, 2004, and
April 12, 2005 (hereinafter collectively referred to as the
“Agreements”); and
WHEREAS , at all times relevant to the matters herein,
James Y. Gleasman, Keith E. Gleasman, Richard B. Sullivan, Gary A.
Siconolfi and Floyd G. Cady, Jr. were officers, directors, and/or
agents or attorneys of Torvec, Inc.; and
WHEREAS , at various times relevant to the matters
herein, Philip A. Fain, Read D. McNamara, Richard E. Ottalagana and
Robert F. Green were members and/or agents of the CXO Entities;
and
WHEREAS , at various times relevant to the matters
herein, Philip A. Fain, Read D. McNamara, Richard E. Ottalagana and
Robert F. Green served as officers, directors and/or agents of
Torvec, Inc.; and
WHEREAS , Philip A. Fain and CXO on the GO of Delaware,
LLC commenced an action against James Y. Gleasman, Keith E.
Gleasman and Floyd G. Cady, Jr. in New York State Supreme Court,
Monroe County, styled Philip A. Fain, et. al. v. James A.
Gleasman, et al. , Monroe County Index No. 2005-9327
(hereinafter referred to as the “Defamation Action”),
alleging damages arising from certain alleged defamatory
statements; and
WHEREAS , Torvec, Inc., Keith E. Gleasman, and James Y.
Gleasman commenced an action against the CXO Entities in New York
State Supreme Court, Monroe County, styled Torvec, Inc., et. al.
v. CXO on the GO of Delaware, LLC, et al. , Monroe County Index
No. 2005-11028 (hereinafter referred to as the “2005
Action”), alleging, inter alia, that certain of the
Agreements were null and void; and
WHEREAS , the CXO Entities asserted counterclaims
against Torvec, Inc., Keith E. Gleasman, and James Y. Gleasman in
the 2005 Action, seeking injunctive and declaratory relief and
damages arising from their alleged breach of the Agreements and
claiming rights under the Agreements and certain warrants issued to
the CXO Entities by Torvec, Inc. related to the Agreements;
and
WHEREAS , Torvec, Inc., commenced an action against the
CXO Entities in New York State Supreme Court, Monroe County, styled
Torvec, Inc. v. CXO on the GO of Delaware, LLC, et al. ,
Monroe County Index No. 2007-1979 (hereinafter referred to as
the “2007 Action”), seeking damages arising from their
alleged breach of the Agreements, and other alleged obligations,
and the actions and inactions and conduct of the members of the CXO
Entities, including but not limited to Philip A. Fain, Read D.
McNamara, Richard E. Ottalagana, Robert F. Green, and Andy Chatman;
and
Settlement
Agreement and Release
Fain v. Gleasman, Monroe County Index
No. 2005-9327
Torvec v. CXO , Monroe County Index
No. 2005-11028
Torvec v. CXO , Monroe County Index
No. 2007-1979
WHEREAS , the CXO Entities asserted counterclaims
against Torvec, Inc., Keith E. Gleasman, James Y. Gleasman and
Richard B. Sullivan in the 2007 Action, seeking damages arising
from their alleged breach of the Agreements and other alleged
obligations; and
WHEREAS , the above-described actions are hereinafter
collectively referred to as the “Litigation”;
and
WHEREAS, all of the claims and counterclaims asserted by
the Parties in the above-described actions are hereinafter
collectively referred to as the “Claims”;
and
WHEREAS, to avoid expense and uncertainty associated with
the Litigation and the Claims, the Parties wish to amicably resolve
the Litigation and the Claims, and further wish to resolve and
preclude the future assertion, commencement or prosecution,
directly or indirectly, of any claims, whether direct, derivative,
or as first-party or third-party, that the Parties may have or have
had between and among them, related to any relationship,
arrangement, or services provided by, between or among the CXO
Parties and the Torvec Parties.
NOW, THEREFORE, in consideration of the foregoing, the
covenants, undertakings and releases contained herein, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by each Party, the Parties, intending
to be legally bound, do hereby agree as follows:
I. Releases by all Parties
. The Parties hereby agree to grant
the releases set forth in paragraph VI below.
II. Stipulation of Discontinuance of
Defamation Action .
Philip A. Fain, CXO on the GO of Delaware, LLC, James Y. Gleasman,
Keith E. Gleasman and Floyd G. Cady, Jr. shall, contemporaneously
with the execution of this Settlement Agreement, cause their
attorneys to execute a Stipulation of Discontinuance with prejudice
of the Defamation Action in the form annexed hereto as
Exhibit A. James Y. Gleasman or Keith E. Gleasman shall cause
the Stipulation to be filed with the Office of the Monroe County
Clerk.
Settlement
Agreement and Release
Fain v. Gleasman, Monroe County Index
No. 2005-9327
Torvec v. CXO , Monroe County Index
No. 2005-11028
Torvec v. CXO , Monroe County Index
No. 2007-1979
III.
Stipulation of Discontinuance of 2005 Action
. CXO on the GO, LLC, CXO on the GO
of Delaware, LLC, Torvec, Inc., James Y. Gleasman, and Keith E.
Gleasman shall, contemporaneously with the execution of this
Settlement Agreement, cause their attorneys to execute a
Stipulation of Discontinuance with prejudice of the 2005 Action in
the form annexed hereto as Exhibit B. CXO on the GO, LLC or
CXO on the GO of Delaware, LLC shall cause the Stipulation to be
filed with the Office of the Monroe County Clerk.
IV. Stipulation of Discontinuance of 2007
Action . CXO on the GO,
LLC, CXO on the GO of Delaware, LLC, Torvec, Inc., James Y.
Gleasman, Keith E. Gleasman, and Richard B. Sullivan shall,
contemporaneously with the execution of this Settlement Agreement,
cause their attorneys to execute a Stipulation of Discontinuance
with prejudice of the 2007 Action in the form annexed hereto as
Exhibit C. CXO on the GO, LLC or CXO on the GO of Delaware,
LLC shall cause the Stipulation to be filed with the Office of the
Monroe County Clerk.
V.
Execution of Confidential Terms Agreement. Contemporaneously
with the execution of this Settlement Agreement, the Parties shall
execute the Confidential Terms Agreement.
A. Release by Torvec, Inc
. In consideration of the execution
of this Settlement Agreement, Torvec, Inc., on behalf of itself and
its respective current and former agents, servants, officers,
directors, shareholders, employees, consultants, owners, officials,
subsidiaries, divisions, branches, units, affiliates, parents,
attorneys, successors, predecessors, heirs, representatives and
assigns, and all other persons or entities claiming by or through
it with respect to any claim asserted in the Litigation, hereby
releases, discharges and acquits CXO on the GO, LLC, CXO on the GO
of Delaware, LLC, Philip A. Fain, Read D. McNamara, Richard E.
Ottalagana and Robert F. Green, and any of their respective current
and former agents, servants, officers, directors, shareholders,
members, employees, consultants, owners, officials, subsidiaries,
divisions, branches, units, affiliates, parents, attorneys,
successors, predecessors, heirs, personal representatives,
insurance carriers, and assigns, from all manners of action, causes
of action, judgments, executions, debts, demands, rights, damages,
costs, expenses and claims of any kind, nature and character
whatsoever, whether in law or in equity, accrued or unaccrued,
known or unknown, matured or unmatured, liquidated or unliquidated,
direct or derivative, certain or contingent, whether asserted or
not, which Torvec, Inc. ever had, now has, or hereinafter can,
shall, or may have against CXO on the GO, LLC, CXO on the GO of
Delaware, LLC, Philip A. Fain, Read D. McNamara, Richard E.
Ottalagana and/or Robert F. Green, for, upon or by reason of any
matter, cause or thing whatsoever from the beginning of the world
up to and including the date this document is executed.
Notwithstanding the foregoing, this release shall not extend to the
obligations of any Party pursuant to this Settlement
Agreement.
Settlement
Agreement and Release
Fain v. Gleasman, Monroe County Index
No. 2005-9327
Torvec v. CXO , Monroe County Index
No. 2005-11028
Torvec v. CXO , Monroe County Index
No. 2007-1979
B. Release by James Y. Gleasman
. In consideration of the execution
of this Settlement Agreement, James Y. Gleasman, on behalf of
himself and his attorneys, agents, successors, predecessors, heirs,
personal representatives and assigns, and all other persons or
entities claiming by or through him with respect to any claim
asserted in the Litigation, hereby releases, discharges and acquits
CXO on the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain,
Read D. McNamara, Richard E. Ottalagana and Robert F. Green, and
any of their respective current and former agents, servants,
officers, directors, shareholders, members, employees, consultants,
owners, officials, subsidiaries, divisions, branches, units,
affiliates, parents, attorneys, successors, predecessors, heirs,
personal representatives, insurance carriers, and assigns, from all
manners of action, causes of action, judgments, executions, debts,
demands, rights, damages, costs, expenses and claims of any kind,
nature and character whatsoever, whether in law or in equity,
accrued or unaccrued, known or unknown, matured or unmatured,
liquidated or unliquidated, direct or derivative, certain or
contingent, whether asserted or not, which James Y. Gleasman ever
had, now has, or hereinafter can, shall, or may have against CXO on
the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain, Read
D. McNamara, Richard E. Ottalagana and/or Robert F. Green, for,
upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world up to and including the date this document
is executed. Notwithstanding the foregoing, this release shall not
extend to the obligations of any Party pursuant to this Settlement
Agreement.
C. Release by Keith E. Gleasman
. In consideration of the execution
of this Settlement Agreement, Keith E. Gleasman, on behalf of
himself and his attorneys, agents, successors, predecessors, heirs,
personal representatives and assigns, and all other persons or
entities claiming by or through him with respect to any claim
asserted in the Litigation, hereby releases, discharges and acquits
CXO on the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain,
Read D. McNamara, Richard E. Ottalagana and Robert F. Green, and
any of their respective current and former agents, servants,
officers, directors, shareholders, members, employees, consultants,
owners, officials, subsidiaries, divisions, branches, units,
affiliates, parents, attorneys, successors, predecessors, heirs,
personal representatives, insurance carriers, and assigns, from all
manners of action, causes of action, judgments, executions, debts,
demands, rights, damages, costs, expenses and claims of any kind,
nature and character whatsoever, whether in law or in equity,
accrued or unaccrued, known or unknown, matured or unmatured,
liquidated or unliquidated, direct or derivative, certain or
contingent, whether asserted or not, which Keith E. Gleasman ever
had, now has, or hereinafter can, shall, or may have against CXO on
the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain, Read
D. McNamara, Richard E. Ottalagana and/or Robert F. Green, for,
upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world up to and including the date this document
is executed. Notwithstanding the foregoing, this release shall not
extend to the obligations of any Party pursuant to this Settlement
Agreement.
Settlement
Agreement and Release
Fain v. Gleasman, Monroe County Index
No. 2005-9327
Torvec v. CXO , Monroe County Index
No. 2005-11028
Torvec v. CXO , Monroe County Index
No. 2007-1979
D. Release by Floyd G. Cady, Jr.
In consideration of the execution of
this Settlement Agreement, Floyd G. Cady, Jr., on behalf of himself
and his attorneys, agents, successors, predecessors, heirs,
personal representatives and assigns, and all other persons or
entities claiming by or through him with respect to any claim
asserted in the Litigation, hereby releases, discharges and acquits
CXO on the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain,
Read D. McNamara, Richard E. Ottalagana and Robert F. Green, and
any of their respective current and former agents, servants,
officers, directors, shareholders, members, employees, consultants,
owners, officials, subsidiaries, divisions, branches, units,
affiliates, parents, attorneys, successors, predecessors, heirs,
personal representatives, insurance carriers, and assigns, from all
manners of action, causes of action, judgments, executions, debts,
demands, rights, damages, costs, expenses and claims of any kind,
nature and character whatsoever, whether in law or in equity,
accrued or unaccrued, known or unknown, matured or unmatured,
liquidated or unliquidated, direct or derivative, certain or
contingent, whether asserted or not, which Floyd G. Cady, Jr. ever
had, now has, or hereinafter can, shall, or may have against CXO on
the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain, Read
D. McNamara, Richard E. Ottalagana and/or Robert F. Green, for,
upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world up to and including the date this document
is executed. Notwithstanding the foregoing, this release shall not
extend to the obligations of any Party pursuant to this Settlement
Agreement.
E. Release by Richard B.
Sullivan . In
consideration of the execution of this Settlement Agreement,
Richard B. Sullivan, on behalf of himself and his attorneys,
agents, successors, predecessors, heirs, personal representatives
and assigns, and all other persons or entities claiming by or
through him with respect to any claim asserted in the Litigation,
hereby releases, discharges and acquits CXO on the GO, LLC, CXO on
the GO of Delaware, LLC, Philip A. Fain, Read D. McNamara, Richard
E. Ottalagana and Robert F. Green, and any of their respective
current and former agents, servants, officers, directors,
shareholders, members, employees, consultants, owners, officials,
subsidiaries, divisions, branches, units, affiliates, parents,
attorneys, successors, predecessors, heirs, personal
representatives, insurance carriers, and assigns, from all manners
of action, causes of action, judgments, executions, debts, demands,
rights, damages, costs, expenses and claims of any kind, nature and
character whatsoever, whether in law or in equity, accrued or
unaccrued, known or unknown, matured or unmatured, liquidated or
unliquidated, direct or derivative, certain or contingent, whether
asserted or not, which Richard B. Sullivan ever had, now has, or
hereinafter can, shall, or may have against CXO on the GO, LLC, CXO
on the GO of Delaware, LLC, Philip A. Fain, Read D. McNamara,
Richard E. Ottalagana and/or Robert F. Green, for, upon or by
reason of any matter, cause or thing whatsoever from the beginning
of the world up to and including the date this document is
executed. Notwithstanding the foregoing, this release shall not
extend to the obligations of any Party pursuant to this Settlement
Agreement.
Settlement
Agreement and Release
Fain v. Gleasman, Monroe County Index
No. 2005-9327
Torvec v. CXO , Monroe County Index
No. 2005-11028
Torvec v. CXO , Monroe County Index
No. 2007-1979
F. Release by Gary A. Siconolfi
. In consideration of the execution
of this Settlement Agreement, Gary A. Siconolfi, on behalf of
himself and his attorneys, agents, successors, predecessors, heirs,
personal representatives and assigns, and all other persons or
entities claiming by or through him with respect to any claim
asserted in the Litigation, hereby releases, discharges and acquits
CXO on the GO, LLC, CXO on the GO of Delaware, LLC, Philip A. Fain,
Read D. McNamara, Richard E. Ottalagana and Robert F. Green, and
any of their respective current and former agents, servants,
officers, directors, shareholders, members, employees, consultants,
owners, officials, subsidiaries, divisions, branches, units,
affiliates, parents, attorneys, successors, predecessors, heirs,
personal representatives, insurance carriers, and assigns, from all
manners of action, causes of action, judgments, executions,
deb
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